All posts by Nicholas Stephanopoulos

“How Manchin and Sinema Completed a Conservative Vision”

Ron Brownstein in the Atlantic on Chief Justice Roberts’s responsibility for — even authorship of — the poor state of American democracy.

Roberts as much as anyone set in motion the events that have led to this week’s climactic Senate confrontation over voting legislation. In a series of rulings over the past 15 years, the Supreme Court, often in decisions written by Roberts himself, has consistently weakened federal oversight of voter protections and struck down federal regulations meant to reduce the influence of money in politics. Almost all of those decisions have unfolded on a strict party-line basis, with the Republican-appointed justices outvoting those appointed by Democrats.

Those decisions have had an enormous practical impact on the rules for American elections. But many voting-rights advocates say that the rulings have been equally important in sending a signal to Republican-controlled states that the Supreme Court majority is unlikely to stand in their way if they impose new restrictions on voting or extreme partisan gerrymanders in congressional and state legislative districts. . . .

Roberts has often appeared reluctant to let the Court be seen in purely partisan terms. But that instinct, as many critics have noted, has not extended to cases involving the core electoral interests of the two political parties—cases in which he’s been entirely willing to engineer sharply divided rulings that separate the justices along partisan and ideological lines. (No Democratic-appointed justice has supported any of these rulings.)

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An ISL challenge in Ohio?

Now that the Ohio Supreme Court has struck down Ohio’s congressional plan on state constitutional grounds, it’s worth considering whether an “independent state legislature” challenge could be brought on this basis. The thrust of the challenge would be that the court infringed the Ohio legislature’s essentially plenary power over congressional redistricting (in the absence of congressional action) under Article I, Section 4.

For several reasons, I think this would be an especially weak ISL suit. First, the state constitutional provision the court enforced (Article XIX’s prohibition of congressional plans that unduly favor a political party) was ratified by the Ohio legislature in 2018. So this isn’t a case (like Arizona Independent Redistricting Commission) where the state constitutional provision was adopted by voter initiative, thereby bypassing the legislature. Second, the state constitutional provision is an explicit ban on aggressive gerrymandering. It’s not some highly abstract clause whose application to redistricting the legislature couldn’t reasonably have anticipated. Third, the state constitutional provision doesn’t cut the legislature out of the redistricting process. Again unlike AIRC, the legislature enacted the plan that was invalidated, and it will now have the chance to pass a lawful remedial map. Lastly, this scenario of congressional gerrymanders being curbed by state constitutions is exactly what Chief Justice Roberts envisioned in Rucho. As the author of the dissent in AIRC, he can’t possibly think there’s an ISL problem with what transpired in Ohio.

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“Census Memo Cites ‘Unprecedented’ Meddling by Trump Administration”

New evidence on the Trump administration’s meddling with the Census, confirming its focus on excluding noncitizens from the population count for reapportionment purposes.

The memo laid out a string of instances of political interference that senior census officials planned to raise with Wilbur Ross, who was then the secretary of the Commerce Department, which oversees the bureau. The issues involved crucial technical aspects of the count, including the privacy of census respondents, the use of estimates to fill in missing population data, pressure to take shortcuts to produce population totals quickly and political pressure on a crash program that was seeking to identify and count unauthorized immigrants.

Most of those issues directly affected the population estimates used for reapportionment. In particular, the administration was adamant that — for the first time ever — the bureau separately tally the number of undocumented immigrants in each state. Mr. Trump had ordered the tally in a July 2020 presidential memorandum, saying he wanted to subtract them from House reapportionment population estimates.

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“The Justice Dept. alleged Jan. 6 was a seditious conspiracy. Now will it investigate Trump?”

WaPo on next steps in the Jan. 6 inquiry:

But so far the department does not appear to be directly investigating the person whose desperate bid to stay in office motivated the mayhem — former president Donald Trump — either for potentially inciting a riot or for what some observers see as a related pressure campaign to overturn the results of the election.

The House select committee on Jan. 6 is investigating both matters, separate from the Justice Department, and has aggressively pursued information about Trump and those closest to him. But FBI agents have not, for example, sought to interview or gather materials from some of Trump’s most loyal lieutenants about their strategy sessions at the Willard hotel on how to overturn the results of the 2020 election, according to participants in those meetings or their representatives. . . .

But some legal analysts say they worry Garland might be moving too cautiously.

“The other shoe has yet to drop — that is: When will the Justice Department promptly and exhaustively investigate the part of the coup attempt that I believe came perilously close to ending American constitutional democracy, basically, without a drop of blood?” said Harvard Law School Professor Laurence Tribe, a constitutional scholar and outspoken Trump critic.

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“FEC report shows how national party committees allegedly blow past contribution limits”

Persuasive evidence that circumvention of federal contribution limits has occurred since McCutcheon struck down the aggregate limits.

A fundraising committee operated jointly by the Trump campaign and the Republican National Committee in 2016 served as a vehicle for state parties to pass more than $27 million to the national party in possible violation of contribution limits, the Federal Election Commission’s general counsel found almost three years ago.

The general counsel’s report, available since 2019, was newly released Friday in an updated and unredacted form because of a development in an associated case. It mirrors findings from the FEC general counsel’s office about similar activity by a joint fundraising committee benefiting Hillary Clinton in 2016. The alleged sum funneled through state party committees in that case was even larger: $112 million. . . .

“The facts of this case appear to present the scenario that troubled numerous Justices in McCutcheon: a pre-arranged plan to circumvent the contribution limits via joint fundraising,” the general counsel’s report found in both cases. It determined there was reason to believe the national committees accepted excessive contributions and recommended the FEC reach a similar conclusion.

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“Disputed Presidential Elections and the Collapse of Constitutional Norms”

Matthew Seligman on Electoral Count Act reform:

This Article exposes the vulnerabilities of the legal framework governing Congress’s role in resolving disputed presidential elections: the Electoral Count Act of 1887. The constitutional and statutory framework for resolving such disputes remains largely untested in courts and only inconclusively examined by scholars, even after the calamitous events of January 6, 2021. That unsteady legal foundation could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball. The Article provides a comprehensive account of the vulnerabilities in current law that leave the process susceptible to election subversion and a detailed analysis of how the law might be modernized to steel it against that manipulation in a time of collapsing constitutional norms.

The Article first illustrates just how easy it could be for unscrupulous political actors to reverse the results of a presidential election by exploiting the Act’s weaknesses. It maps out the ways in which political actors playing constitutional hardball could manipulate the results of an election while staying within the strict bounds of the written law by abandoning informal constitutional norms. The Article then offers a blueprint for a redesigning the law to protect the process of presidential elections, as well as it can, from that exploitation. It analyzes the many choices Congress faces in crafting such a law, including how to allocate legal authority among states, Congress, and courts, and how to design dispute resolution procedures in Congress when it counts the votes in the Electoral College. The exceptional nature of that problem, in which states, Congress, and the Vice President play sui generis roles not found elsewhere in the architecture of the Constitution, requires a unique legal framework that poses unprecedented constitutional questions. The Article therefore considers the constitutionality of critical features of the proposed Act, addressing arguments arising from the political question doctrine, the separation of powers, the Electors Clause, and other constitutional provisions.

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“The Voting Rights Conundrum”

Stephen Griffin on how voting rights commentary often ignores history, especially in the South.

Unfortunately, this viewpoint leaves out one region and one group of surpassing importance to the Democratic party and, one hopes, to the nation as a whole – African Americans in the South.  Perhaps Levin is overlooking the question of race because he references the “Freedom to Vote Act”, rather than the John Lewis Voting Rights Advancement Act, the response to Shelby County and Brnovich which renews for a new era the Voting Rights Act of 1965 (VRA).  But, in fact, a number of elements in the two laws are linked in that many of the states that have enacted restrictive laws are in the South, such as Georgia, Texas, and Florida.  If Levin is suggesting that Democrats ignore the perspective of African Americans in the South, that is an obvious nonstarter.  Indeed, given the history represented by John Lewis, their perspective ought to be our perspective.

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“Estimating partisan advantage” (Ramsay guest post)

This is a guest post by Alec Ramsay of Dave’s Redistricting about a new class of metrics that measure whether redistricting plans favor one political party or the other.

People tend to use the terms “bias” and “fairness” interchangeably and sometimes use the term “partisan bias” generically even though it has a specific meaning in the literature. People also tend to treat prominent measures of “bias” as though they all measure the same thing, even though some metrics measure partisan gerrymandering via packing & cracking, some measure partisan symmetry, and others measure “fairness” relative to some normative standard.

The measures of partisan fairness allowed in the Senate’s recent Freedom to Vote Act (S2747) measure a quantity I call partisan advantage: the difference between the ideal and actual seat shares. As Nick Stephanopoulos pointed out in his analysis of its Rebuttable Presumption of gerrymandering provision, the language in the Act excludes measures of partisan fairness “that don’t specify an optimal seat share for a party’s given statewide vote share” – such as measures of partisan asymmetry, mean–median difference, and declination – but includes the efficiency gap and disproportionality.

In my paper, Estimating Seats–Votes Partisan Advantage, I extend Jon Eguia’s notion of partisan advantage to formalize this class of metrics which I call seat–votes partisan advantage. I show that most prominent measures of “bias” – including declination, lopsided outcomes, mean–median difference, seats bias, votes bias, geometric seats bias (), global symmetry, disproportionality, and the efficiency gap – don’t measure it specifically or aren’t reliable for states that are unbalanced politically. In contrast, also show that both disproportionality and the efficiency gap do measure partisan advantage and are reliable across a wide range of statewide vote shares.

This approach – using a measure of partisan advantage with an ideal seats–votes benchmark – can be enshrined in new federal law, like the Senate’s Freedom to Vote Act (S2747), and in state constitutions, as it is in Ohio.

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“Campaign Finance Returns to Supreme Court in Ted Cruz Case”

New Brennan Center analysis of the pending Ted Cruz case.

The Supreme Court will hear oral arguments this Wednesday in a case that marks the latest attempt to dismantle federal campaign finance rules. The case, Federal Election Commission v. Ted Cruz for Senate, challenges a statutory limit on how much candidates can raise after an election to recoup money they loaned to their own campaigns. . . .

The limit is a straightforward anti-corruption measure. The Supreme Court has held that candidates have the right to spend as much of their own money as they want to get elected — wealthy self-funders often tout their lack of reliance on donors as proof that they are incorruptible (an argument the Court itself has echoed). But fundraising after an election to recoup personal funds turns this argument on its head: Instead of being independent from donors, a winning candidate — now an elected official — is raising money that will go directly into the official’s own pocket. The corruption risk is obvious.

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“What Democrats put in their voting rights megabill — and what got left out”

A good summary of the contents of the FTVJRLA (I think that’s the right acronym).

The new combined legislation largely draws on the Freedom to Vote Act to expand ballot access in several ways. The provisions include requiring states to offer online and Election Day voter registration, as well as offering automatic voter registration when an eligible would-be voter interacts with a state’s motor vehicle department. . . .

The package does not mandate universal vote-by-mail systems, in which states automatically mail ballots to voters without a request. Eight states currently conduct at least some elections this way, with limited in-person options typically offered as well. . . .

The megabill also includes the Right to Vote Act, which some legal scholars believe would open up expansive opportunities to sue over voting practices that are not specifically enumerated. . . .

The mega-package also pulls from the John Lewis Voting Rights Advancement Act, a bill that would restore a key provision of the landmark 1965 Voting Rights Act. The Voting Rights Act set up a concept called “preclearance,” which meant states and other jurisdictions with history of discriminatory voting practices had to get election law changes — including new political boundaries — preapproved by either the Department of Justice or the federal district court in D.C. . . .

One of the biggest provisions in the bill would be a significant overhaul of the congressional redistricting process — namely banning partisan gerrymandering. In a 2019Supreme Court decision, Rucho v. Common Cause, the high court ruled that federal courts had no power to police congressional lines that were drawn to give a party a partisan advantage. This bill would write that power into law. . . .

The bill also has sections that address attempts to subvert a federal election, mainly targeting attacks on elections administrators and the tallying of votes. One provision makes it harder to remove local election officials, giving a removed official the right to sue and the federal government the explicit ability to intervene in lawsuits to try to stop the removal. . . .

The voting provisions have gotten the most attention in this bill, but the legislation also proposes dramatic changes to federal campaign finance laws in the United States. It includes the DISCLOSE Act, which would force a slew of politically active nonprofit organizations — which can keep their donors secret under current law — to publicly disclose their funders. It would also apply disclosure requirements to groups that spend supporting or opposing federal judicial nominations, and it lays out firmer bans on foreign campaign contributions. . . .

The bill would also create various public financing programs for House elections. One is titled the “optional democracy credit program,” allowing states to opt into a program that would provide voters a “democracy credit” of about $25 which they can give to a candidate. The bill, separately, creates a 6-to-1 public matching program for small-dollar donors to House candidates. Republicans have opposed these provisions particularly vocally.

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More wrong claims about accountability

In his opinion concurring with today’s decision striking down OSHA’s vaccine/testing/masking rule, Justice Gorsuch reiterated the arguments he made in Gundy about congressional accountability. “The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.” “Sometimes lawmakers may be tempted to delegate power to agencies to ‘reduc[e] the degree to which they will be held accountable for unpopular actions.'”

Jed Stiglitz, Chris Warshaw, and I recently filed an amicus brief in West Virginia v. EPA, the pending case about the EPA’s authority to regulate greenhouse gas emissions in certain ways, refuting these kinds of accountability claims. In a nutshell, they’re empirically unfounded because members of Congress typically wouldn’t be rewarded or punished for the extra stances they would have to take if the major question or nondelegation doctrines were enforced more aggressively. Whatever other bases these doctrines might have, they shouldn’t be grounded in improved accountability.

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“Oath Keepers founder Stewart Rhodes charged with seditious conspiracy in Jan. 6 Capitol riot”

I believe these are the first sedition charges filed on the basis of the Jan. 6, 2021 events:

Stewart Rhodes — founder and leader of the extremist group Oath Keepers — was arrested Thursday on a charge of seditious conspiracy, accused of guiding a months-long effort to unleash politically motivated violence to prevent the swearing-in of President Biden that culminated in the Jan. 6 attack on the U.S. Capitol.

The 56-year-old, who was at the Capitol that day but has said he did not enter the building, is the most high-profile person charged in the investigation so far. The indictment filed against Rhodes and 10 other Oath Keepers or associates marks the first time the historically rare charge of seditious conspiracy has been leveled in connection with the wide-ranging Jan. 6 probe.

“Rhodes and certain co-conspirators … planned to stop the lawful transfer of presidential power by January 20, 2021, which included multiple ways to deploy force,” the indictment reads. “They coordinated travel across the country to enter Washington, D.C., equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer Rhodes’ call to take up arms at Rhodes’ direction.”

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“Absentee ballot drop boxes can’t be used in Wisconsin any longer, a Waukesha County judge rules”

A Wisconsin judge suddenly discovers that, despite years of use, absentee ballot drop boxes are actually unlawful:

Drop boxes have long been available in some Wisconsin communities, but their use expanded greatly in 2020 when absentee voting exploded because of the coronavirus pandemic. More than 500 of them were available during the presidential election, according to a database compiled by the Wisconsin Center for Investigative Journalism.

Bohren’s ruling barring the use of drop boxes — if it survives an almost-certain appeal — will affect how ballots can be returned in next month’s low-turnout primary for the spring elections. It will have more far-reaching consequences in the fall, when far more people vote. 

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“Sinema and Manchin confirm opposition to eliminating filibuster, likely dooming Democrats’ voting rights push”

WaPo on Senators Manchin and Sinema prioritizing the filibuster over election reform:

Democrats’ hopes of finally pushing through voting rights legislation after months of Republican opposition appeared to be fatally wounded Thursday as two Democratic senators announced they would not support changing Senate rules that have long allowed a minority of senators to block legislation.

The fresh statements from Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) came as President Biden traveled to Capitol Hill to deliver a final, forceful appeal for action, putting an exclamation point on their party’s long and so far fruitless effort to counter restrictive Republican-passed state voting laws.

The trip was rendered futile before Biden even set foot in the presidential limousine Thursday when Sinema explained her views in a midday floor speech. Manchin issued a written statement outlining his position shortly after Biden left.

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“Schumer sets up final Senate confrontation on voting rights and the filibuster”

WaPo on the path to a potentially climactic showdown over the pending voting rights legislation. Step one: the House passes a megabill combining the FTVA and the JLVRAA (and also including some amendments to the previous versions of these bills). Step two: the Senate begins debate on the megabill (which it can do without overcoming a filibuster because a shell bill containing what’s now the megabill has already passed the Senate). Step three: either a lot of talking and a lot of failed cloture votes, or some reform that ultimately allows a majority vote on the megabill’s passage.

In the memo, Schumer announced his intention to use existing rules to jump-start debate on the voting bills by having the House amend an existing, unrelated bill dealing with NASA and sending it back to the Senate as soon as Wednesday night. Starting debate under those circumstances requires only a simple majority of 51 votes — not a 60-vote supermajority.

But the maneuver does not affect the 60-vote requirement for ending debate and moving to final passage of the Democratic bills. With at least two Democratic senators signaling that they are not willing to erode that provision, Schumer’s plan would set up a final confrontation when and if a motion to close debate is blocked. At that point, Schumer or another Democrat could move to establish a new, 51-vote precedent, subject to a simple majority vote. . . .

“With this procedure, we will finally have an opportunity to debate voting rights legislation — something that Republicans have thus far denied,” he said. “Of course, to ultimately end debate and pass the voting rights legislation, we will need 10 Republicans to join us — which we know from past experience will not happen — or we will need to change the Senate rules as has been done many times before.”

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